The last several years have seen numerous efforts to modify or simply abolish merit selection/commission-based judicial appointive systems and 2015 was no exception. In these systems , a commission provides a list of names to an executive, or in the case of South Carolina the legislature, from which the appointing authority must select (as opposed to some states where the commission’s list is a recommendation only).

Much of the effort in 2015 focused on either a) reducing the percentage of lawyer-appointed members of the nomination commissions and/or b) requiring judges appointed under such systems receive super-majority support in subsequent yes/no retention elections. While major changes failed to pass in 2015, they do indicate where legislative activity will likely be focused in this area in 2016.

Alaska

In a repeat of efforts first started in 2014, legislators pressed to give more control to the governor and legislature over the state’s Judicial Council which serves as the judicial nominating commission for the state. Under SJR 3 the Council would have been expanded from 7 members to 10 by the addition of 3 new non-attorney members appointed by the governor. Moreover, all Council members would have been required to be confirmed by the legislature (currently the attorney-elected councilmembers and chief justice are not required to be confirmed into their council positions). Facing heavy opposition SJR 3 was approved by the Senate State Affairs Committee on March 25 but proceeded no further.

Arizona

Two constitutional amendments to modify the commission system (which applies to appellate judges and general jurisdiction judges in the state’s largest counties) were filed this year. HCR 2002 would have required judges facing retention elections receive at least a 60% “yes” vote. HCR 2006 would have allowed the state’s legislature to remove from office on a 2/3rds vote judges appointed under such a system without the need to prove an impeachable offense. Both bills died in committee.

Colorado

No changes offered.

Connecticut

No changes offered.

Florida

For the first session in nearly a decade there were no bills introduced to change the state’s judicial selection system, this after a loss in 2014 of a plan to allow governors to “prospectively appoint” to fill judicial vacancies that had not occurred yet.

SB 615 would have specified that the Senate was to receive written notice concurrently with the appointment and that the 30 day clock for the Senate to confirm started only “on the senate’s receipt of the written notice”.

SB 615 was approved by the full Senate on March 10 but the House Judiciary Committee made several amendments to clarify some of the technical language regarding notification. The House amended version ultimately died in the House Finance Committee at session’s end.

Indiana

Indiana saw three separate efforts to change judicial selection in 2013. SJR 8 and SJR 9 sought to end commission-based selection for judges, allowing the governor to appoint anyone to the Supreme Court and Court of Appeals subject to Senate confirmation. Both constitutional amendments would have also repealed any judicial canons that prohibited a judge from speaking in their campaigns or making a donation of money, services, or property to a political party or a candidate for office, including a candidate for a judicial office. Finally, judges appointed under this system would have been required to receive a supermajority of “yes” votes to be retained in office: 67% under SJR 8 and 60% under SJR 9.

SJR 15 took a different tack on the issue of judicial selection. The constitutional amendment would have reduced the number of attorney-designated seats on the state’s merit selection commission and required Senate confirmation. In a unique proposal not found in any other state, the bill would have ended elections for subsequent terms, instead requiring a judge receive a 60% yes vote not of the general public but of the House of Representatives.

Neither SJR 8, SJR 9, nor SJR 15 proceeded out of committee.

Iowa

No changes offered.

Kansas

Having abolished the merit selection/commission-based judicial appointive system for the Court of Appeals in 2013 by statute, the state’s legislature urged on by the state’s governor debated numerous statutory and constitutional changes to the way the state’s Supreme Court is chosen, most focused on ending the state’s merit selection/commission based system.

HCR 5005: Allow Governor to appoint to Supreme Court or Court of Appeals subject to Senate confirmation. As is currently the case for the Court of Appeals by statute there would be a default-confirmation provision; if the Senate fails to vote on a candidate within a certain number of days (depending on if in session or out of session) the candidate is automatically confirmed. Judges would remain subject to yes/no retention elections. Approved by House Judiciary Committee 2/17/2015.

HCR 5006: Same as 5005, but judges would serve for life and not be subject to retention or other election.

HCR 5015: Keeps nominating commission, but gives governor power to name 5 out 9 members. Requires any name submitted to governor be approved by 2/3rds of commission.

In addition to the above SB 197 would have made statutory changes with respect to these commissions, placing them under the state’s Open Meetings Act. The records of attorneys who voted in elections to place attorney-members on the commissions would be subject to the state’s Open Records Act as well.

Missouri

No changes offered.

Nebraska

No changes offered.

Oklahoma

Angry at several recent decisions of the state’s Supreme Court which had resulted an impeachment effort in 2014, both the House and Senate debated either changing or ending the commission-system currently in place.

Two constitutional amendments were offered: HJR 1006 would have targeted just the Supreme Court (and not the other appellate courts), effectively replicating the system in place in Michigan and Ohio. There political parties nominate or hold primaries for judicial candidates who then appear without party labels on the November ballot. HJR 1006 would also have provided that the Governor was to name the Chief Justice from among the justices of the Supreme Court and remove the Chief Justice from that office at will. SJR 32 would have allowed the governor to appoint anyone to the appellate courts subject to Senate confirmation. The existing judicial nominating commission would remain, but as an advisory body to review the appointee prior to Senate confirmation as either “qualified” or “not qualified”. Retention elections would have remained in place for subsequent terms. Neither HJR 1006 nor SJR 32 proceeded out of committee.

Several statutory efforts were undertaken to change the composition of the judicial nominating commission. HB 2214 and SB 795 would have vacated all 6 currently serving attorney-selected members of the commission. The House bill would have refilled the positions with 6 attorneys, 2 each for the Lt. Governor, the Attorney General, and the state bar. The Senate version provided 3 selections each for the Speaker of the House and President Pro Tempore of the Senate. Neither proceeded out of committee.

Rhode Island

In a repeat of a practice that has been renewed annually for almost a decade, HB 6307 would have allowed governors to fill vacancies in judicial office not only based on the contemporary list provided by the judicial nominating commission but from any list submitted by the commission in the previous 5 years. The existing statutory authorization for the 5-year look back provision lapsed as of July 31, 2015. While the House passed HB 6307 prior to the deadline (June 18), the bill remains locked in the Senate Judiciary Committee.

South Carolina

South Carolina’s legislature electes the judges of the state’s higher courts and has for the last several years used a merit selection commission to obtain a list of names for consideration. Presently the commission submit a list of the three best qualified candidates, however HB 3979 and SB 247 would have required the commission release the names of all qualified candidates. That plan was approved by the House on April 29 and remains pending in the Senate Judiciary Committee into the 2016 session. Other bills focused on giving the governor a role in the selection process.

HB 3123: Ends legislative selection and use of nominating commission. Provides for governor to appoint subject to Senate confirmation.

SB 111: Ends legislative selection and use of nominating commission. Provides for governor to appoint subject to Senate confirmation.

SB 242: Commission members to be selected by governor, not legislature.

South Dakota

No changes offered.

Utah

In 2008 Utah’s Justice Courts were brought into the state commission-based judicial selection system. At that time the statute required the nominating commission submit at least two names to the local appointing authority to fill a judicial vacancy. SB 141 included among its various amendments to a variety of statutes a provision that the commission must now submit at least three names. It was signed into law March 23.

Last month Montana’s Senate approved on a 28-22 vote a bill (SB 235) which would prohibit the governor from tampering with the judiciary’s budget request before it was submitted to the legislature (discussed here). It now appears as if some Rhode Island legislatures are looking to advance a similar plan.

Under SB 524 the Rhode Island judiciary’s budget would be exempt from control by the Executive Branch’s Budget Officer of the Capital Development Planning Commission. Instead, the Budget Officer would only have the authority to assist the judiciary in the development of its budget.

SB 524 is set for a hearing tomorrow (March 5) before the Senate Judiciary Committee.

HB 7259/ SB 2546 Provides for the processing of electronic payments submitted to all courts within the unified judicial system and provides for the implementation of technology fees not to exceed twenty five dollars ($25.00) in order to pay for technology infrastructure and case management system.

HB 7306 /SB 2549 Defines “limited English proficient person” for the purposes of interpreters for legal proceedings as any person whose primary language is not English & who does not have the ability to adequately understand or communicate effectively in English.

HB 8006/ SB 3080 Extends until 2015 law allowing any individual whose name was publicly submitted to the governor by the judicial nominating commission, eligible for subsequent nomination by the governor.

HB 8050 / SB 2488 Provides that only those judges having completed service prior to January 1, 2014 are eligible to, upon reaching the age of sixty-two (62) years, receive during life a sum equal to three-fourths (3/4) of the highest annual salary that the person was receiving during such service.

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This fourth in a series of posts looks at legislative efforts to change the civil jurisdiction thresholds in state limited and general jurisdiction courts in the last decade. For a listing of all current civil jurisdiction thresholds, click here.

Under the plan (HB 8006) anyone vetted and approved by the merit selection system for a judgeship would be eligible for any other judgeship of the same court for at least 5 years. The original merit selection plan in operation from 1994 to 2007 required a person reapply and be reexamined for each new vacancy. The eligible-for-five-years plan first started in 2008 and has been renewed every year since (HB 7829 of 2008, HB 5567 of 2009, SB 2645 of 2010, SB 686 of 2011, HB 8043 of 2012, and SB 471 of 2013.

This eligible-for-five-years program met with some resistance last year (coverage here) over accusations of politicization when the governor nominated in May 2013 a former Senate president for a Superior Court vacancy based on the former Senator’s vetting in August 2010. Gavel Grab had done extensive coverage of the issue. Another 1 year extender bill was enacted in 2013 but had to be made retroactive as the old law had expired.

The Senate version (SB 3080) had a hearing June 10 and was held over in the Senate Judiciary Committee for further study.

Bills expanding the use of court interpreters have advanced in three states in the last 10 days.

In California the Assembly Judiciary Committee approved AB 1657, a bill that would expressly authorize the court to provide a court interpreter in any civil action or proceeding at no cost to the parties, regardless of the income of the parties. The bill would require interpreters to be provided in accordance with a specified order of priority, if sufficient funds are not appropriated to provide an interpreter to every party who needs one. AB 1657 was approved 10-0 by the Assembly Judiciary Committee on April 28 and 17-0 by the Assembly Appropriations Committee on May 7.

At almost the same time as the California Assembly Appropriations vote, the full Illinois Senate approved SB 977 to create a 2-year pilot program for the use of court interpreters for jurors in the state’s five largest counties (Cook, Lake, DuPage, Kane, and Will). The bill provides

if any juror’s predominant language is not English, the juror may be accompanied by an interpreter. In the case of a non-English speaking juror, the interpreter shall be available throughout the actual trial and may accompany and communicate with the juror throughout any period during which the jury is sequestered or engaged in its deliberations.

SB 977 then requires the court set reasonable fees for the interpreter out of county funds and that the Administrative Office of the Illinois Courts is to monitor and report out on the program.

The third item that recently moved was Rhode Island’s HB 7306. As approved by the House on April 30. HB 7306 rewrites three key provisions related to court interpreters.

It is hereby declared to be the policy of the state of Rhode Island to guarantee the rights of persons who, because of a non-English speaking background, are unable to readily understand or communicate in the English language, and who consequently need the assistance of an interpreter be fully protected in legal proceedings in criminal matters before the Rhode Island superior court, the Rhode Island district court, and in juvenile matters in the Rhode Island family courtunified state court system.

Other references throughout various statutes discussing interpretation only in the context of criminal proceedings would also be amended out or repealed.

The second removes references to “non-English speaking person” and replaces with a newly defined term “limited English proficient person”

Current law: A “non-English speaking person” means any person who can not readily speak or understand the English language and whose native language is either Spanish, Portuguese, Cape Verdean or Cambodian.

Proposed new law: A “limited English proficient person” means any person whose primary language is not English and who does not have the ability to adequately understand or communicate effectively in English.

The definition on “qualified interpreter” (as opposed to a certified interpreter) would also change from “a person who through experience and training is able to translate a particular foreign language into English but who does not have a state certification” to “a person who is able to interpret simultaneously and consecutively and sight translate from English into a foreign language and from said language into English but who is not certified.”

A one-year “temporary” revision to Rhode Island’s merit selection system that has been extended 6 times has been reintroduced for one more extension. Under the plan (HB 8006) anyone vetted and approved by the merit selection system for a judgeship would be eligible for any other judgeship of the same court for at least 5 years. The original merit selection plan in operation from 1994 to 2007 required a person reapply and be reexamined for each new vacancy. The eligible-for-five-years plan first started in 2008 and has been renewed every year since (HB 7829 of 2008, HB 5567 of 2009, SB 2645 of 2010, SB 686 of 2011, HB 8043 of 2012, and SB 471 of 2013).

This eligible-for-five-years program met with some resistance last year (coverage here) over accusations of politicization when the governor nominated in May 2013 a former Senate president for a Superior Court vacancy based on the former Senator’s vetting in August 2010. Gavel Grab had done extensive coverage of the issue. Another 1 year extender bill was enacted in 2013 but had to be made retroactive as the old law had expired.

SB 471 Extends until 2014 law allowing any individual whose name was publicly submitted to the governor by the judicial nominating commission, eligible for subsequent nomination by the governor. Retroactively applies to those on pending lists as of June 30, 2013.

SB 488 Requires the approval of the supreme court of any rules regulating the practice, procedure and business of the workers’ compensation court consistent with the procedures in effect for all other courts.